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COMMONWEALTH PENNSYLVANIA v. THURMAN HAYES (07/16/79)

submitted: July 16, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
THURMAN HAYES, APPELLANT



No. 263 Special Transfer Docket, Appeal from the Judgment of Sentence of the Luzerne County Court of Common Pleas, Criminal Division, at No. 566 of 1978.

COUNSEL

Malcolm M. Limongelli, Wilkes-Barre, for appellant.

Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.

Wieand, Nix and Wekselman, JJ.*fn*

Author: Nix

[ 271 Pa. Super. Page 69]

Appellant Hayes was charged with third degree murder, aggravated assault, simple assault, recklessly endangering another person, carrying a firearm without a license, and possession of instruments of crime, all of which arose out of an incident in February, 1978 in which James Matthew Gregory was killed. After extensive plea bargaining, appellant pled guilty to third degree murder and the other charges were dismissed by nolle prosequi. Appellant contends that the sentence he received -- a minimum of seven

[ 271 Pa. Super. Page 70]

    years and a maximum of twenty years imprisonment -- is defective in that the sentencing judge failed to adequately set forth the reasons for the sentence imposed and that the sentence is excessive. For the reasons stated below, we affirm the judgment of sentence.

Appellant's first contention is controlled by today's decision in Commonwealth v. Bachert, 271 Pa. Super. 72, 412 A.2d 580 (1979). There we stated that in Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), the Supreme Court

     held that the trial court should place on the record its reasons for imposing the particular sentence chosen. The Court believed that absent such a statement of reasons, the record would not reveal whether the trial court had considered the legislatively mandated factors set forth in the Sentencing Code, Act of December 30, 1974, P.L. 1052, No. 345, as amended, 18 Pa.C.S.A. ยงยง 1301 et seq. The Riggins Court recognized that "[t]raditionally, appellate courts have left sentences undisturbed on appeal because of the view that the trial court is in a far better position to weigh the factors involved in sentencing determinations." 474 Pa. at 123, 377 A.2d at 144.

Although the reasons set forth by the trial court for the sentences imposed were devoid of explication, they still may be valid. In Commonwealth v. Wareham, 259 Pa. Super. 527, 393 A.2d 951 (1978) the Court stated:

It is better practice for the court to include in its statement of reasons for the sentence some reference to the guidelines specified in the Sentencing Code, with some explanation of how consideration of those guidelines affected the determination of sentence. Commonwealth v. Riggins, supra. Still, we should not hold a statement of reasons insufficient, and therefore require vacation and remand, when it is ...


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